Jagan Nath Aggarwal vs Smt. Neelam Rani

J.V. Gupta, J.—This is a petition filed on behalf of the tenant Petitioner against the order of the Appellate Authority, Ludhiana, dated 31st May, 1976. whereby his appeal was dismissed and the order of the Rent Controller, directing his ejectment was maintained.

A petition for eviction was filed against Jagan Nath tenant-Petitioner, from the premises situate in Chowk Neemwala, Ludhiana, on the allegation that Jagan Nath was in occupation of the same as a tenant on a monthly rent of Rs 40/ and that he neither paid nor tendered rent since April. 1969, and the Neelam Rani needed the disputed property for her own use and occupation after reconstructing the same as the house in dispute is in a dilipidated(sic) condition. It was also pleaded that the tenant has committed such acts as have materially impaired the value and utility of the house and further that he is a nuisance to the occupiers of the buildings in the neighbourhood. In reply filed on behalf of he tenant it was denied that the house was required for her own use and occupation or that the house was in a dilapidated condition, muchless that the landlord warned to reconstruct it Other allegation were also denied and on the pleadings of the parties the Rent Controller framed the following issue:

(i) Whether the Respondent is liable to ejectment on the ground mentioned in para 3(b)(c) and (d) of the petition ? O.P.P.

(ii) Whether the Respondent has beer served with a valid notice u/s 106 of Transfer of Property Act by the Petitioner? OP P.

(iii) Relief

During the pendency of this application for ejectment the landlord made an application dated 11 th July, 1972 with a prayer that the tenant should permit her to enter the house to prepare the report regarding the condition of the house In that application, it was specifically stated that one of the grounds of ejectment is that the premises in dispute are unfit for human habitation. There is another application also on the record, dated 30th November, 1972, riled by the landlord with a prayer that some local Commissioner be appointed to examine the property in dispute to note down the premises'' condition "as it exists today". In this application again it was specifically stated that one of the grounds of ejectment is that the property in dispute is in dilapidated condition and so is unfit for human habitation. This plea of the landlord was never contested by the tenant on the ground that it was never a ground of ejectment pleaded. Both the parties led evidence on the ground of bonafide requirement for personal use and occupation as well as on the condition of the building as to whether the same had become unsafe and unfit for human habitation. On the appreciation of the evidence the learned Rent Controller came to the conclusion that "My above discussion leads me to this conclusion that the disputed premises are in dilapidated condition and they are unfit for human habitation and the Petitioner requires them for her personal use and occupation after re constructing the same for which she had also got a plan sanctioned from the Municipal Committee, Ludhiana, and as such the Respondent is liable to be ejected on this ground." In appeal the learned Appellate Authority has maintained this finding arrived at by the Rent Controller Feeling aggrieved by this concurrent finding of both the Courts, the tenant has came up in revision to this Court.

The learned Counsel for the tenant Petitioner vehemently argued that the landlord has falled to plead the necessary ingredients of Section 13(3)(a)(i) of the East Punjab Urban Bent Restriction Act and on this ground alone the revision petition is liable to be accep ed. Moreover was also pointed out that this was specifically- argued before the Appellate Authority but the learned Appellant Authority, relying upon Shri Krishan Lal Seth v. Smt. Pritam Kumar, (1961) 63 P. L. R. 865 came to the conclusion that it is not necessary for the landlord to state in the application the necessary ingredients set out in Section 13(3)(a)(i) of the Act. According 10 the learned Counsel this Authority has been overruled subsequently and it has been authoritatively hold by the Full Bench of this Court in Banke Ram v. Sar sti Devi (1977) 79 P. L. R. 112, that the lanadlord must plead all the necessary ingredients before an order of ejectment can be passed against the tenant.

On the other hand, the learned Counsel for the landlord has contended that ii may be that in view of the Full Bench judgment, the necessary ingredients should have been pleaded or proved but in the present case the orders of ejectment have been passed on the ground of bonafide requirement for personal use and occupation as well as on the ground that the premises have become unsafe and unfit for human habitation. If the order can be maintained on the second ground, that is, the premises have become unsafe and unfit for human habitation, then the necessity of making any remand will not arise in the present case. I find force in this contention of the learned Counsel. In reply to this, the learned Counsel for the Petitioner contended that as a matter of fact this was never pleaded to be a separate ground by the landlord for the ejectment of the tenant as It is an independent ground provided u/s 13 of the ejectment application wherein it has been stated that "the Petitioner needs the house in question for her own occupation after reconstructing the same as the said house is in a dllapidated condition " It was also continued by the learned Counsel that the grounds, i e , the ground for bona fide requirement for personal use and occupation and that the premises have become unsafe and unfit for human habitation, are mutually exclusive and therefore there being no specific pies on that ground, no order of ejectment could be passed against the tenant on a ground which was never pleaded

After hearing the learned Counsel for the parties, I do not find any merit in this petition It may be that in the ejectmant application the landlord did not specifically plead in so many words the independent ground of ejectment that the premises have become unsafe and unfit for human habitation From the record of the Rent Controller it is quite clear that the parties knew trial this ground is very much there and the necessary evidence was led by both the parties that point I have already referred to the two applications made by the landlord in the Court of the Rent Controller wherein it was specifically pleaded that one of the grounds of ejectment is that the premises have become unsafe and unfit for human habitation and the tenant never objecte to it on the ground that this was never the plea taken by the landlord Moreover, both he authorities below have gone into this matter and have given a specific finding on this plea and it has been concurrently held that the premises have become unsafe and unfit for human habitation. Under these circumstances it cannot be accepted that there was no specific plea in so many words taken by the landlord in the ejectment application The parties knew that this plea is there and led the evidence as well on that point and now in revision petition the tenant cannot be allowed to agitate that is plea was not specifically taken. The learned Counsel for the Petitioner was unable to point out that how the tenant was preju diced in any way for not taking this plea specifically though the parties were very well aware of the same. Under these circumstances I do not find any merit in this contention of the learned Counsel for the tenant.

This contention of the learned Counsel that both the said pleas are mutually oclusive(sic) is not supported from the language of the statute. The three cases cited by him, Civil Revision No 180 of 190(sic) (Poli Ram v. Shri Manmohan Lal and another Civil Revision No. 180 of 1960) decided on 18th January, 1961; Civil Revision No 634(sic) of 1863 (Bihari Lal v. Buheshar Nath, Civil Revision No. 644 of 1963 decided on September 30, 1963 and Civil Revision No. 823 of 1966 (Joginder Nath v. Shri Doulot Ram Civil Revision No. 823 of 1966) decided on May 9, 1968 ; do not support this contention In a given cases the landlord may bonafide require the premises for his own use and occupation after reconstructing and at the same time one of the grounds of ejectment may be that the premises are unsafe and unfit for human habitation In the present case the bonafide of the landlord are clear from the tact that he wanted to occupy the premises after reconstructing the same. In other words, the main plea was that the premises have become unsafe and unfit for human habitation and he wants to reconstruct the same and after reconstruction the same will be oc upied by him, I do not find how both the pleas are contradictory to each other.

For the reasons recorded above, this petition fails and is dismissed with costs. However, the tenant is allowed six weeks time to Vacate the premises, provided all the arrears of rent, if any, and advance rent for this period is paid or deposited within fifteen days from today.